How tough can we get, really?

Or better yet — are the sentencing tools judges and justices have to work with good enough?

Are the options of jail, probation, house arrest and fines (generally, these are the big four) enough to deter offenders (convicted or would-be) from crime?

Let’s look at the recent case of Crystal Audy, a 29-year-old First Nations woman who lives on reserve just outside of Swan River.

Last April, Audy was hammered on booze and dope and rolled a vehicle. One passenger suffered a broken jaw, the other a range of injuries that will likely affect her for the rest of her life.

From Judge Don Slough’s Jan. 19 decision:

[The victim]suffered a broken arm, paralysis to her right side and extensive bruising as a result of the accident. Four months later, [The victim] still uses a cane and requires assistance in her home in terms of bathing. Her treatment is on-going and it sounds as if she will never return to her pre-offence condition.

Audy — who has no criminal record — blew .14 at the low range when tested.

When asked why she drove she responded “I was the least drunk of everyone so I had to drive,” an opinion shared by another passenger. At no point in her life had Ms. Audy possessed a driver’s licence.

The judge then turns to Audy’s background:

The Pre-Sentence Report which included a valuable “Gladue Report” describes Ms. Audy as the product of a small, remote and impoverished First Nation community with high rates of unemployment and crime. She is responsible for the care of two young children and subsists on Band assistance. The community has limited recreational and therapeutic resources. Ms. Audy advised the probation officer she frequently saw violence and substance abuse within her own community. Her parents were the product of the residential school system. The offender’s mother in particular suffered as a result and due to family addiction issues Ms. Audy was raised in foster homes and by her grandmother. The offender advises that she was victimized as a child. She has a very limited work history. Ms. Audy advised the probation officer she was not currently abusing alcohol but that until very recently she used marijuana on a frequent basis. Notwithstanding the offender’s lack of a prior record the Pre-Sentence Report states that using the current assessment tool:

“Ms. Audy was assessed as high risk to re-offend. The significant factors for this person are Employment/Education, Alcohol/Drug Problem and Leisure/Recreation. Other factors that may have an impact on this case are Ms. Audy’s own victimization issues and her problem with depression”.

He then considers the appropriate sentence, and his range of options are limited by the fact conditional sentences are no longer available for impaired driving cause bodily harm.

There are a number of factors that demand consideration of an incarceratory sentence. The circumstances of the offence are serious and the bodily harm caused by the accused appears to be permanent. In addition, my experience sitting in Swan River suggests that drinking and driving is a serious issue in this community and the communities in the Swan River region. This includes the First Nation community where Ms. Audy resides. The Pre-Sentence Report indicates members of that First Nation community are aware of the impact of this offence on the victims. It is important that the Court provide a strong response to this offence.

It is difficult to gauge with precision the weight to give to Parliament’s decision to eliminate the availability of a Conditional Sentence Order for this offence. As Ms. Audy’s counsel has pointed out, the amendments do not preclude the imposition of what would normally be considered a less onerous sentence such as a fine and probation. That being said, it is difficult to believe that Parliament’s intention was to encourage more lenient sentences for a serious personal injury offence.

As referenced earlier the R.C.M.P. suggested that at the time of the incident there was very little evidence of remorse. However, it has been my observation that the offender’s demeanor and her statements to the Court demonstrate a high degree of remorse.

In considering whether to impose a period of incarceration, I must consider whether or not an intermittent sentence would provide the denunciation and deterrence this offence warrants. It is my understanding that for women in Manitoba all intermittent sentences are served at the Portage Women’s Jail an overcrowded and decrepit 115-year-old facility. A new and larger institution will be opening in the relatively near future in Headingley.

For this offender to serve an intermittent sentence she would have to travel approximately four hours to Portage la Prairie. Given she has no car or driver’s licence and according to the Pre-Sentence Report is on Band assistance the logistics and expense involved make it virtually impossible for Ms. Audy to serve an intermittent sentence.

Due to these limitations, the judge’s hands, essentially, are tied. Sending Audy to jail can’t, or better yet, won’t work in terms of balancing the set out sentencing principles of denunciation, deterrence and rehabilitation.

In the end, Slough rules to fine her and put her on probation.

I am ordering that Ms. Audy pay a fine of $1,000 within 12 months and be placed on supervised probation for 18 months.

The conditions of that probation include an absolute curfew (essentially house arrest similar to conditional sentence without the true threat of that being converted to real jail) and community service work in the amount of 120 hours. He also adds a two-year-driving prohibition — IMO a pointless measure given she’s never had a licence and yet was driving anyway. It’s Swan River. I’m sure this happens a lot.

Jail, probation, fine. These ultimately were the options.

On one hand, one could be questioning the sentence: that somehow not sending Audy to jail lets her off the hook for injuring two people, one very badly.

On the other, one sees the pointlessness of jailing her. It won’t change a thing for her and likely won’t “teach her a lesson” as the hang em’ high crowd would crow.

But clearly, fining a woman — a young mother — on social assistance and allowing her to stay at home could be equally perceived as too lenient.

My question — to get to it an a long-winded way, is: Are there other options judges should have to deal with similar cases?

So-called sentencing circles are one thing, but that’s old news. What else?

Public shaming? Hard to do in a community where there’s virtually no media to cover case outcomes.

But I’m more interested in innovation and new ideas. The U.S. experience tells us that locking people up for longer and longer terms isn’t sustainable.

And the Canadian experience is that perceptions the justice system is soft on criminals is deteriorating public faith in the justice system.

The Audy case is emblematic of that. If this decision were to go into an MSM newspaper or broadcast, I can guarantee there would be gnashing of teeth and the usual call to arms for harsher this and that.

Make no mistake: violent criminals need to be separated from society for the greater good of living in peace.

But in the cases like the Crystal Audys of the world, we should be thinking of giving judges more creative ways to punish people for their bad acts.

Published by James Turner

4 thoughts on “How tough can we get, really?”

A good discussion to have without hysterics. Maybe this is the one place online where it may be possible to do so.

My problem with alternatives is probably your problem with alternatives. Does jailing her – in this system, or some utopian rehabilitative jail – do anything useful for the offender or her family or immediate community? No. Will it “teach her a lesson?” No.

Or rather, it’ll teach her a lesson, but probably not the one we’d be hoping for.

So I’d be open to some constructive alternatives. But here’s my problem: the one *certainty* we do know is that if she’s a high risk to reoffend, putting her in jail dramatically reduces amount of time she has available to harm someone again. The John Howard society loves to crow about how there’s “proof” that there’s no deterrent effect from long sentences, but they usually omit a key point in that discussion. Namely, that the long sentence is a deterrent to future crimes, insofar as an offender who’s already identified and convicted cannot kill, maim, threaten, rape, stab, club, DUI or otherwise reoffend amongst unsuspecting innocents as long as they’re incarcerated.

That – despite it’s seeming futility – is why incarceration still seems like the right policy to me.

“The U.S. experience tells us that locking people up for longer and longer terms isn’t sustainable.”

It also isn’t effective. I really wish I had bookmarked some links of some pretty in-depth studies on incarceration and recidivism; it wasn’t at all encouraging.

Brian does bring up the important point that it does keep the general populace “safe,” at least for the time the individual is locked up. And that is true and I do think gets overlooked in a lot of discussions critical of incarceration rates.

However, I would argue that there are a lot of semi-invisible fallouts (in the sense that they aren’t easily measured, statistically) produced by the system as it exists, that ultimately conspire to make crime, overall, worse in the long run. To wit:

Further normalizing a culture of incarceration in high-risk populations; normalizing a culture of violence (I keep thinking of Tobias Beecher when I write that, heh, but it’s true in the real world as well); facilitating in-prison victimization that only produces further trauma and normalized violence; encouraging recidivism in inmates on short terms (think about how many petty criminals or low-ranking hang-arounds on short sentences get patched-in in jail, largely because they were in jail); straining or splintering families (which is one of the biggest issues relating to crime in the first place, in my opinion); further stigmatizing and marginalizing already disadvantaged groups, and marginalization is routinely linked to crime; and blah blah blah I could go on forever.

There’s also the issue of how many inmates in prison are there, in part, because they have some level of mental illness or disability. Prison is most definitely not a place equipped to properly facilitate treatment of mental illness. I’m too lazy right now to go shopping for links, but I have seen some good work in the past demonstrating that prison sentences can worsen inmates’ coping skills with mental illness, which is a pretty logical hypothesis to hold even without the data at my fingertips.

I’m not arguing against incarceration — obviously it’s an extremely important law enforcement tool — but in the end, there are and must be more effective alternatives that are successful on longer terms.

Unfortunately, many of these alternatives aren’t politically popular. I mean, I have to roll my eyes every time there are comments screeching for the return of death penalty on various news websites; even if we make the massive effort to shove the ethics aside, it’s neither effective nor cost-effective.

To me, when I think of solutions, at the end of the day I look back to the basic idea of — what sets someone who commits a crime apart from someone who doesn’t? Because that’s where you have to start at figuring out a better way to rehabilitate them.

There’s a few categories. Some categories, there’s not much you can do with. You can’t do too much to rehabilitate a true violent sociopath, for instance. Or violent sex offenders and pedophiles. So set those aside, and look at the masses.

For the most part, the difference between myself and the majority of people in prison is twofold: first, criminals are demonstrably more likely to have reduced long-term planning capabilities, making the long-term risk of incarceration a reduced deterrent compared to the short-term impulse. Second, to be simplistic, my folks wouldn’t have it. And I don’t just mean my family; in my life, committing a crime and being incarcerated for it would posit a huge amount of loss. It is a totally unacceptable thing.

While a lot of people would prefer to believe that they were simply born gifted with superior moral fibre, the fact is that people are the strongest enforcers of other people’s behaviour; what we do or do not do is largely defined by what the social group we identify tolerates. That’s easily enough proven by the most casual glance at human history, really. And this synergizes with the first point: if you’re looking at the people around you and thinking “Crap, if I do this, these guys are going to hate me,” that’s a more immediate deterrent than incarceration risk, if you already have reduced long-term planning abilities than the norm.

So that’s where you have to start: taking people who have grown up in a culture of normalized criminality, and who are prone to impulsive behaviour, and allow them to integrate into a culture of normalized and encouraged lawfulness and positive, deeply rooted social structure. The current system doesn’t do that at all — it simply further stigmatizes and further marginalizes (John Braithwaite has written a lot about that), making crime worse both on an individual level, and a community level.

Unfortunately, addressing that takes a lot of time-intensive resources that many dismiss as “bleeding heart.” But there are options. Restorative justice has a lot of promising data behind it — and that model goes a long way towards allowing the offender to be integrated into a lawful cultural metric.

For instance, prisons themselves could be made both more humane, and more supportive of a constructive social model. An example: there are limited programs in the U.S. (not sure about Canada specifically), to allow women who are pregnant when they are incarcerated to raise their child in a special section of the prison for a certain length of time. During that time, they’re supported with parenting classes and other programs designed to facilitate mother-child bonding.

I love those programs, and early data suggests they are very effective at reducing recidivism. Plus, they prevent another child being thrust into a troubled foster-care system, and prevent the trauma of mother-loss that does impact a lot of individuals. At the end of the day, the more social responsibilities you have — and the better you feel and are equipped to uphold them — the more likely you’ll be to uphold those responsibilities.

I would want to expand them, and adapt other aspects of prison accordingly. There’s no reason, besides a lust for vengeance, that prisons should be the way they usually are. Just to muse on a few concepts: they could be adapted to foster constructive mini-communities of inmates inside the prison. You could give these mini-communities, for instance, something like a constitution and a democracy with limited, rotating powers amongst individuals. Make these have real-world meaning by joining it to skill-building as well; each mini-com could also represent a real in-prison business.

You could establish psychosocial rehabilitative environments — I sometimes wonder if programs similar to rather uncommon but very effective psychosocial programs for schizophrenia treatment, for instance, could be adapted to a prison model — some of the stuff Soteria is doing in that end, seems to me like it could easily be adapted to support some of the same psychosocial instabilities that are tied to criminality. You could also boost family supports in and out of prison.

The problem is that this would take a lot of real human work, though it wouldn’t necessarily take a large amount of long-term extra resources. The upshot is that it might actually mean that people leave prison better people then when they went in. The short term effect might not be major, but the long term effect could be enormous, once we start looking at subsequent generations from people in a prison system that was designed fundamentally around building stable and lawful social bonds, encouraging and allowing personal responsibility, and facilitating real restorative understanding.